Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F5832
BUTZ , J.Defendant Wesley James Stone appeals from an order revoking his Proposition 36 probation (Pen. Code, § 1210.1 et seq.) and sentencing him to state prison for possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). Relying on this court’s decision in People v. Esparza (2003) 107 Cal.App.4th 691 (Esparza), the trial court revoked defendant’s probation after his first drug-related violation, owing to defendant’s impending incarceration on an unrelated parole violation. He contends that the judgment should be reversed because his impending imprisonment did not make him unamenable to treatment. We disagree and shall affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL BACKGROUND
On August 1, 2005, defendant was found in possession of 0.6 grams of methamphetamine. When the police entered the home where he was living, he tried to escape through a window. Defendant was also taken into custody for violating his parole by absconding.
Defendant was on parole after sustaining a felony conviction for inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)).
On December 13, 2005, defendant was arrested for one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), one count of possession of a smoking device (id., § 11364), one count of possession of a hypodermic needle without a permit (Bus. & Prof. Code, § 4140), and one count of resisting a peace officer (Pen. Code, § 148, subd. (a)(1)).
On December 29, 2005, defendant pleaded guilty to possession of methamphetamine in return for a dismissal of the other charges. The trial court suspended imposition of the sentence and placed him on Proposition 36 probation. The conditions of his probation included reporting to the probation department, participating in drug treatment, and avoiding drug use.
On February 9, 2006, the People filed a petition for revocation of probation. The petition alleged that defendant had failed on three occasions to report for his required meetings with the probation department and had failed to report for his intake appointment with his drug treatment program. On March 2, 2006, defendant admitted the probation violations and testified that he had failed to report to probation for testing because he was high on drugs and knew he would fail. He testified that he had failed to report for his intake appointment because he was “loaded on some crank.”
At a sentencing hearing on April 18, 2006, the trial court found that all of the violations were drug related. However, defendant disclosed that he was about to return to prison until July 22, 2006, based on the parole violation. The prosecutor then argued that, because defendant was about to be incarcerated, he was unamenable to treatment as provided for in Proposition 36.
After further briefing by the parties, the court indicated that, under normal conditions, Proposition 36 would require that defendant be given a second chance at probation. However, the court observed that Esparza “makes it, in my opinion, fairly clear if a person’s not immediately available to enroll in a treatment program, that is the report be--there’s requirements of within seven days probation must notify the drug program provider, within 30 days drug program provider must prepare a treatment plan. All these things require the defendant to be available, and if he can’t because of another proceeding in which he’s been sentenced to prison, then that by law makes him unamenable to treatment . . . .” Accordingly, the court revoked defendant’s probation and sentenced him to the midterm of two years in state prison on the possession of methamphetamine count.
DISCUSSION
I. Proposition 36 Overview
“A defendant who is on probation pursuant to Proposition 36 can only have that probation revoked in accordance with the terms of the statutory scheme. [Citations.] For such a defendant, Proposition 36 supersedes the trial court’s general power to revoke probation under sections 1203.2 and 1203.3. [Citations.] ‘Different rules apply depending on whether a defendant violates a non-drug-related or drug-related condition of probation.’ [Citation.] ‘Anticipating that drug abusers often initially falter in their recovery, Proposition 36 gives offenders several chances at probation before permitting a court to impose jail time. The first time an offender violates a drug-related condition of probation, he is entitled to be returned to probation unless he poses a danger to others. (§ 1210.1, subd. (e)(3)(D) [now subd. (f)(3)(A)].) The second time he violates a drug-related condition of probation, he is entitled to be returned to probation unless he poses a danger to others or is unamenable to treatment. (§ 1210.1, subd. (e)(3)(E) [now subd. (f)(3)(B)].) Only upon a third violation of a drug-related condition of probation does an offender lose the benefit of Proposition 36’s directive for treatment instead of incarceration. (§ 1210.1, subd. (e)(3)(F) [now subd. (f)(3)(C)].) Upon such a violation, the court regains its discretion to impose jail or prison time.” (People v. Dagostino (2004) 117 Cal.App.4th 974, 987.)
Section 1210.1, subdivision (g) defines “drug-related condition of probation” as “a probationer’s specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling.”
“The drug treatment programs are monitored and regulated by statute, and the program providers must report directly to the probation department.” (Esparza, supra, 107 Cal.App.4th at p. 696.) “Within seven days of an order imposing probation . . . , the probation department shall notify the drug treatment provider . . . . Within 30 days of receiving that notice, the treatment provider shall prepare a treatment plan and forward it to the probation department.” (§ 1210.1, subd. (d).) Drug treatment services may not extend beyond 12 months. (§ 1210.1, subd. (d)(3).) However, the court, in its discretion and if an extension is required for treatment to be successful, may twice make a finding on the record to extend the allowable time up to six months, for a total extension of 12 months. (Ibid.) Significantly, however, qualifying drug treatment programs may not be located in a prison or jail facility. (§ 1210, subd. (b).)
II. Alleged Noncompliance with the Statutory Scheme
Defendant initially argues that because the trial court found his first violation was drug related, peremptory revocation of his probation violated the step-by-step procedure set forth in section 1210.1, subdivision (f)(3)(A). He contends that the statute requires specific procedures and findings before probation can be revoked, and the trial court was without authority to bypass these procedures and send him straight to prison.
Normally, reinstatement of a nonviolent drug offender’s probation would be mandatory under Proposition 36 after a first drug-related violation, absent a specific finding by the trial court that he posed a danger to society. (§ 1210.1, subd. (f)(3)(A).) However, in Esparza we found that the mandatory language of section 1210.1 does not apply if sentencing the person to probation would be futile due to his imprisonment on a non-drug-related offense. (Esparza, supra, 107 Cal.App.4th at p. 698.)
Esparza was arrested for possession of methamphetamine. (Esparza, supra, 107 Cal.App.4th at p. 694.) At the time, he was also on probation following a felony vandalism conviction. (Ibid.) The trial court revoked his probation on the vandalism charge and sentenced him to prison for both the vandalism and methamphetamine offenses. (Id. at pp. 694-695.)
We rejected Esparza’s argument that he should have been given a first chance at probation under Proposition 36. We noted that “the statute requires that drug treatment begin within seven days of the trial court’s order, by the probation department notifying the drug treatment provider, and the provider designing a treatment plan within 30 days. [Citation.] Neither the probation department nor any drug program provider could provide timely services to a prison inmate.” (Esparza, supra, 107 Cal.App.4th at p. 699, italics added.) We therefore concluded that, because Esparza’s imprisonment on a non-drug-related felony made it impossible for him to participate in a drug treatment program, Proposition 36 did not require the empty formality of placing him on probation. “[T]he trial court was not required to engage in the superfluous act of placing a defendant on probation when he could not participate in the treatment program required as a condition of that probation. We do not construe statutes to create absurd results.” (Id. at p. 698.)
Although defendant was sentenced to prison after a first violation, whereas Esparza was sentenced to prison before even being placed on drug probation, this reasoning is equally valid. Had the court reinstated probation, defendant would have been unavailable to enter treatment due to his incarceration in prison, where no services are available. Defendant admits that if he failed to show up for intake into a treatment program, the court could revoke his probation after a second violation on the ground he was “unamenable” to treatment as provided for in section 1210.1, subdivision (f)(3)(B). As was the case in Esparza, the trial court here was not required to go through these additional steps where drug treatment is impossible and therefore revocation is inevitable.
Section 1210, subdivision (b) provides, in relevant part: “The term ‘drug treatment program’ or ‘drug treatment’ does not include drug treatment programs offered in a prison or jail facility.”
III. Distinguishing Esparza
Defendant argues that Esparza is distinguishable from his case because his prison term is considerably shorter than the statutory time allotted to complete drug treatment. Unlike Esparza, who was sentenced to prison for three years eight months, defendant’s parole violation required only three months’ incarceration. Because the statute allows up to a maximum of 24 months for him to complete the required treatment and does not specify when the treatment must begin, he contends that a delay of a few months for him to complete his prison term would not prohibit him from completing the drug treatment program within the statutorily allotted time.
However, the decision in Esparza did not rest on the length of the defendant’s incarceration. Rather, it focused on Esparza’s inability to meet the seven-day referral and 30-day planning requirements set forth in section 1210.1, subdivision (d). (Esparza, supra, 107 Cal.App.4th at p. 699.) At the time of sentencing for the violation of his drug probation, defendant was scheduled to report forthwith to prison on the parole violation. Had the trial court reinstated probation, defendant would be required to report for treatment within seven days. This would be impossible because he was due to spend the next three months in prison. Thus, as in Esparza, defendant would necessarily violate his drug-related probation condition leading to an inevitable finding that he was unamenable to treatment. (§ 1210.1, subd. (f)(3)(B).) It would be absurd to require the trial court to engage in the superfluous act of reinstating defendant’s drug probation, where subsequent revocation of that probation was a foregone conclusion. (Esparza, supra, 107 Cal.App.4th at p. 698.)
Defendant argues that a delay of a few months would not prevent him from undergoing treatment under Proposition 36 because the statute does not say when treatment has to begin. However, the statute requires action by the probation department within seven days of sentencing and the commencement of treatment within 30 days thereafter. (§ 1210.1, subd. (d).) Contrary to defendant’s assertions, the beginning of this process necessarily contemplates his presence and participation. (Esparza, supra, 107 Cal.App.4th at p. 699.)
The 7- and 30-day time deadlines set forth in section 1210.1, subdivision (d) demonstrate the Legislature’s intent that drug offenders begin their treatment immediately. This immediacy requirement cannot be met if treatment is delayed while the offender is serving prison time on a non-drug-related offense.
Our disposition also comports with the overall purpose behind Proposition 36. The intent of the voters was to keep nonviolent drug offenders out of prison and give them a chance at treatment. (People v. Wandick (2004) 115 Cal.App.4th 131, 135.) Defendant has committed several non-drug-related felonies and he was going back to prison as a result of having perpetrated a violent non-drug-related offense. Manifestly, he is not in the “class of nonviolent substance abusers for whom the voters intended rehabilitative treatment when they passed Proposition 36.” (Ibid.)
The trial court did not err in revoking defendant’s probation, where it was obvious he could not participate in drug treatment due to his incarceration on an unrelated, non-drug-related offense.
DISPOSITION
The order revoking probation is affirmed.
We concur: DAVIS , Acting P. J., NICHOLSON , J.